Wiggins v. Brazil Coal and Clay Corp.
| Decision Date | 30 September 1982 |
| Docket Number | No. 1-1181A328,1-1181A328 |
| Citation | 440 N.E.2d 495 |
| Parties | Charles A. WIGGINS and Ruth P. Wiggins, d/b/a Sugar Ridge Lake Estates; Jack Stevenson; James M. Deady and Audrey C. Deady; Norris E. Sherman and Lois M. Sherman; Hubert A. Scheidler and Ruth G. Scheidler; Eugene D. Walters and Antoinette A. Walters; Daniel J. Sullivan, Jr. and Gail G. Sullivan; Wayne Karanovich and Martha G. Karanovich; Robert C. Trout and Marilyn L. Trout; Don E. Handlin; Carl R. Shepherd and Virginia L. Shepherd, Appellants (Plaintiffs Below), v. BRAZIL COAL AND CLAY CORPORATION, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Hansford C. Mann, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for appellants.
Cox, Zwerner, Gambill & Sullivan, Terre Haute, James B. Sparks, Bloomfield, for appellee.
The plaintiffs-appellants, Charles A. and Ruth P. Wiggins (Wiggins) appeal the decision of the trial court which found in favor of the Brazil Coal and Clay Corporation (Brazil Coal). The Wigginses and other property owners, in a subdivision in Clay County called Sugar Ridge Lake Estates, allege that the surface mining activities of Brazil Coal caused the loss of the water in the lake.
We reverse and remand.
The lake was formed prior to 1960 as a result of strip mining. Prior to the activities of Brazil Coal, the lake was approximately 10 acres in size and was 35-45 feet deep. The lake was fed by percolating subterranean water and surface water. The Wigginses used the lake for their private enjoyment between 1962 through 1970. The lake was utilized for catfish farming between 1970 through 1973. The general public could fish the lake during this time for a daily fee. The catfish farm was closed in 1975 and the Wigginses began to develop a subdivision around the lake called Sugar Ridge Lake Estates. The other landowners in Sugar Ridge Lake Estates joined the Wigginses in this lawsuit.
Brazil Coal is a surface mining company which began strip mining near Center Point, Indiana in 1975. In surface mining operations, a dragline digs down into the earth until it reaches a seam of coal in order to allow other equipment to remove the coal. Brazil Coal's operation consists of stripping pits which are ninety feet wide and run in a north-south direction. The presence of water in the pits creates problems for the operation and, if not removed, can prevent the mining.
In August, 1977, Brazil Coal encountered flooding in its pits while the dragline was digging at a depth of 55 feet. Brazil Coal moved the dragline approximately one hundred feet north, began digging, and again encountered water. The dragline was then moved 500 feet north where no water was encountered. While this latter pit was being mined, Brazil Coal drilled two wells and began pumping to dewater the original pits. While Brazil Coal engaged in the dewatering process, it was discovered that the water level of the Wigginses' lake was falling. The trial court found that the water in the pits was coming from Wigginses' lake by abandoned deep mine shafts situated beneath the upper vein of coal. Brazil Coal also installed sump pumps in the pits to aid the dewatering process.
The trial court found that it was necessary for Brazil Coal to dewater its pits in order to continue its mining operations. It was also found that Brazil Coal conducted its mining operations in a safe, lawful and reasonable manner and that the removal of the water from Brazil Coal's pits was for the reasonable and beneficial use of its land.
The trial court concluded that Brazil Coal was entitled to use underground water since its use was reasonably necessary for some beneficial purpose relating to the land. The court held that the pumping and removal of water in relation to mining operations was both reasonable and necessary. The trial court concluded that Wigginses were not entitled to damages or injunctive relief.
The Wigginses argue that the trial court's conclusions of law are contrary to law and that the facts do not support these conclusions. The Wigginses also allege that facts found by the trial court support a finding on their behalf and against Brazil Coal.
There are two traditional positions regarding the law of subterranean water; the English Rule and the American rule. The English Rule is described in Finley v. Teeter Stone, (1968) 251 Md. 554, 248 A.2d 106 as follows:
Thus, under the English Rule, the owner of the freehold was deemed to own all of the percolating waters beneath the surface of the land as he owned the soil and minerals beneath the surface of the land and the air and sky above the surface--an application of the maxim cujus est solum, ejus est usque ad coelum et ad inferos. The English Rule is sometimes referred to as the "Absolute Ownership Rule," as the owner of the surface of the land had the absolute right to intercept underground percolating water before it left his property for whatever purpose he pleased and without regard to the effect of such interception on the owner of neighboring land.
The American Rule also recognizes the overlying landowner's proprietary interest in the water beneath his land.
The American, as distinguished from the English rule, is that, while the owner of land is entitled to appropriate subterranean or other waters accumulating on his lands, which thereby become a part of the realty, he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns, unconnected with the beneficial use of the land, especially if the exercise of such use is injurious to others, who have substantial rights to the water.
Metropolitan Utilities Dist. v. Merritt Beach Co., (1966) 179 Neb. 783, 140 N.W.2d 626, 637.
A third doctrine, called the correlative rights or California rule has arisen. This rule holds that the rights of all landowners over a common aquifer are coequal or correlative. Thus one landowner cannot extract more than his share of the water even for use on his own land where others' rights are thereby injured. Prather v. Eisenmann, (1978) 200 Neb. 1, 261 N.W.2d 766.
Additionally, subterranean waters are generally classified as two types: 1) underground streams and 2) percolating waters. Finley v. Teeter Stone, supra. Where the subterranean water flows in a definite channel, the same rules of law apply to it as apply to a surface stream. Gagnon, et al. v. French Lick Springs Hotel Co., (1904) 163 Ind. 687, 72 N.E. 849. Therefore, the overlying landowners have riparian rights.
Brazil Coal argues that the trial court's decision must be affirmed regardless of whether the English Rule or the American Rule is applied because the trial court ruled that the dewatering was necessary and reasonably related to the coal mining activities. The Wigginses contend that the standard of reasonableness must consider the needs of all landowners, not just the interests of the overlying landowners. They also argue their position is supported by the Restatement of Torts, public policy as contained in the statutes regulating water use, and the federal law governing strip mining.
Indiana has rendered very few decisions regarding the law of subterranean water. In New Albany and Salem Railroad Co. v. Peterson, (1860) 14 Ind. 112, our supreme court adopted the English Rule. However, Indiana's adherence to this doctrine was abrogated in Gagnon, supra. Gagnon involved the intentional diversion of subterranean stream in order to destroy the appellee's hotel business. The supreme court stated:
The strong trend of the later decisions is toward a qualification of the earlier doctrine that the landowner could exercise unlimited and irresponsible control over subterranean waters on his own land, without regard to the injuries which might thereby result to the lands of other proprietors in the neighborhood. Local conditions, the purpose for which the landowner excavates or drills holes or wells on his land, the use or nonuse intended to be made of the water, and other circumstances have come to be regarded as more or less influential in this class of cases and have justly led to an extension of the maxim, "Sic utere two ut alienum non laedas " 1 to the rights of landowners over subterranean waters, and to some abridgment of their supposed power to injure their neighbors without benefiting themselves.
163 Ind. at 697-698, 72 N.E. 849.
We believe this language requires this tribunal to limit the common law rights to blindly explore and utilize subterranean water without regard to injury to adjoining landowners.
There is another reason mandating a change from the common law in this case. The Wigginses have raised federal law in support of their positions. The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. Secs. 1201-1328, has provisions regulating strip mining activities. It provides:
Water rights and replacement
(a) Nothing in this chapter shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface coal mining operation.
(b) The operator of a surface coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where such supply has been affected by contamination, diminution, or interruption proximately resulting from such surface coal mine operation.
30 U.S.C. Sec. 1307.
The successor trial judge, ruling on the motion to correct errors, held that he had no jurisdiction to enforce this provision.
The Surface Mining and Reclamation Act has been subjected to much litigation concerning whether its provisions usurp the states' traditional powers to govern land use. Indiana challenged the statute's prime farmland provision, as well as other land restoration provisions, as contravening the...
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